State v. Fisher
State v. Fisher
Opinion of the Court
Defendant was convicted for delivery of a controlled substance. ORS 475.992. He assigns error to the trial court’s order of restitution. We remand for resentencing.
Defendant pleaded no contest and was placed on probation for five years. At the sentencing and restitution hearings, he presented evidence about his financial situation, employment and debts. The Presentence Investigation Report recommended, among other things, that defendant pay restitution to the owner of the house in which the drug was manufactured
Defendant’s counsel requested that the proposed fine be reduced to $500, because defendant had no financial resources and had $20,000 in unpaid medical bills. The trial court agreed to the $500 fine and ordered that, in addition, defendant pay $7,100 in restitution, at which point this exchange occurred:
“COUNSEL: [I] would ask the Court to consider a couple of things; one of which is that [defendant] has been ordered to pay a $500 fine. Perhaps the Court would prefer to have him start on restitution [rather] than to first pay the fine.
“At this point, his probation officer doesn’t feel that he is able to make substantial payments toward anything but a fine. So I don’t know if the Court would consider that.
“THE COURT: Well, I’ll leave it to the discretion of the probation officer * *
Defendant argues that the trial court’s restitution order is void, because it failed to make findings on the record about his ability to pay, which he argues is required by ORS 137.106(2), and that he is unable to pay the amount of restitution ordered.
The state responds, first, that, although defendant objected to the amount of restitution ordered, “he did not assert that he would never be able to pay it.” Failure to make that particular argument is not fatal. State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988). He sufficiently raised the issue of the
The state next contends that the trial court adequately considered defendant’s ability to pay.
Conviction affirmed; remanded for resentencing.
Defendant admitted that he had allowed methamphetamine to be manufactured on the premises.
The state also argues that the record supports the restitution order. Because we conclude that the court did not take into account the statutory factors, we need not consider whether there was sufficient evidence in the record that might have supported the order.
ORS 137.106(2) provides:
“In determining whether to order restitution which is complete, partial or nominal, the court shall take into account:
“(a) The financial resources of the defendant and the burden that payment of restitution will impose, with due regard to the other obligations of the defendant;
“(b) The ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court; and
“(c) The rehabilitative effect on the defendant of the payment of restitution and the method of payment.”
Defendant’s other arguments do not warrant discussion.
Dissenting Opinion
dissenting.
The majority holds that the trial court did not take into account the statutory factors about defendant’s ability to pay restitution. I disagree, because that is not the issue raised by defendant in the trial court.
Defendant was placed on probation for five years. As
Defendant also argues that there is no evidence that he caused any damage by his manufacture of methamphetamine to a house in which he was residing with permission from the tenant. He asserts that he did not participate in that activity and that there was insufficient evidence that the house was damaged. The record is to the contrary. I would affirm.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.